Aside from FBI assistance to the Salvadorans, DOJ was not
asked to become involved in the investigation and prosecution of
the Zona Rosa case until 1987. In November 1987, because of the
possibility that the amnesty would free Rivas, DOS asked DOJ to
pursue an indictment of him.

After receiving the DOS request, DOJ assigned the case to Mark
Biros, an Assistant United States Attorney (AUSA) for the
District of Columbia, and Dana Biehl, a prosecutor in DOJ's
GLAAS. [Biehl later became a part of the newly created Terrorism
and Violent Crime Section (TVCS) which took over all terrorism
matters.] According to Biehl, DOS informed DOJ that it felt
strongly that the Salvadorans should prosecute the defendants if
possible and that the United States should step in only if the
Salvadorans granted amnesty to the defendants. Because DOS had
attempted to improve the Salvadoran judicial system, DOS believed
that it would be a "vote of no confidence" for DOJ to
prosecute the Zona Rosa case in the United States.

DOJ agreed with DOS that the Salvadorans should retain the
case and prosecute the Zona Rosa killers if possible. A
Salvadoran prosecution avoided numerous problems, such as
securing custody of the defendants in the United States, evidence
admissibility problems with Rivas' confessions, and the potential
argument that the Salvadorans were acting as "agents of the
United States" in obtaining the confessions. (These issues
will be discussed in detail in Section 6 below.) In addition, the
Salvadorans would have a better chance of convicting them.
Moreover, DOS and DOJ did not want the Salvadorans to assume that
DOJ was going to prosecute the killers and that the Salvadorans
should not continue their attempts.

However, if the Salvadorans intended to release Rivas pursuant
to a general amnesty, the United States would seek his custody
and attempt to prosecute him. DOJ believed that such a
prosecution might result in an acquittal due to the limited
evidence in the case but believed it was, as DOJ prosecutors
stated in an internal memorandum seeking approval of a
prosecution, "worth the undertaking rather than remaining
idle while Rivas goes unpunished." Any United States
prosecution was dependent on obtaining custody of the defendant,
which was difficult because the Salvadoran constitution prohibits
the extradition of Salvadoran nationals. As a result, unless the
United States was going to conduct an "irregular
rendition," "snatch," or lure the defendant from
El Salvador--none of which was contemplated--El Salvador would
have to agree voluntarily to hand over its citizen to the United
States government. This would have been a highly controversial
step in El Salvador. Therefore, although DOJ agreed to open an
investigation, it was recognized that the likelihood that the
case would ever be tried in the United States was small.

2. DOJ's Investigative Plan

On November 19, 1987, DOJ prosecutors and FBI agents met to
develop an investigative plan in the Zona Rosa case. The FBI was
asked to collect relevant evidence from United States and
Salvadoran authorities related to the investigation of the
murders. The FBI directed an agent from its Legat in Mexico City
to travel to El Salvador and meet with Salvadoran law enforcement
and intelligence agencies to obtain reports and evidence for
review by the FBI and DOJ. DOJ and USAO attorneys planned to
review the documents collected and then travel to El Salvador to
locate and interview witnesses. Some of these witnesses would
later be asked to come to the United States to testify before a
federal grand jury.

A Mexico City FBI Assistant Legat travelled to El Salvador and
found little useful physical evidence in the possession of the
Salvadoran law enforcement or judicial authorities. Although
bullets were recovered from the victims' bodies, no weapons were
recovered with which to compare them. Latent prints were found on
one of the vehicles used in the killings, but they did not match
any of the captured perpetrators. The Assistant Legat reported
the substance of the statements taken from the Zona Rosa
defendants, which we described above, and the circumstances under
which they were taken. FBI Headquarters also arranged for the
translation of the Salvadoran documents and police reports that
had been collected by the Mexico City Legat.

On December 8, 1987, the District of Columbia United States
Attorney and the Salvadoran Minister of Justice and Attorney
General met in Washington to discuss a possible United States
prosecution of the Zona Rosa killers. The Salvadoran officials
were cooperative, but there was no discussion of the details of
the Salvadoran prosecution or whether the Salvadorans would make
witnesses available for a potential prosecution in the United
States. The problem of releasing any Salvadoran defendants to the
United States was discussed at length. The Salvadoran officials
stated that participation in any clandestine effort to release
the defendants to the United States would have serious political
drawbacks for them and that the Salvadoran government could not
cooperate with an irregular transfer of the defendants. There was
some discussion of having the suspects released on the other side
of the Salvadoran border, where they would be picked up by the
United States, but that issue was never resolved.

3. DOJ's Analysis of the Case

AUSA Biros, the initial lead DOJ prosecutor on the case, told
us that the case against Rivas was complicated by the fact that
the CIA had interviewed him. Biros believed that the CIA would
try to protect the identity of its agents and would not allow
them to testify in court. Biros also said that in any United
States prosecution of Rivas, the issue of the voluntariness of
his confession would have been fully litigated by defense
counsel. Even if the confession were not suppressed, Biros was
concerned how a District of Columbia jury would respond to
testimony about the manner in which Rivas was treated by the
interrogators. Biros did not know what kind of evidence Rivas
might produce regarding coercion, and Biros was concerned that
prosecutors might not be able to rebut a claim of coercion
without credible Salvadoran witnesses or the disclosure of
classified information. Biros stated that the introduction of
Rivas' confessions might end up putting on trial "the whole
political situation in El Salvador."

On November 27, 1989, Biehl, Biros, FBI WMFO Special Agent [REDACTED],
and Carlos Correa (an attorney with DOJ's Office of International
Affairs who had previously been detailed to work on human rights
cases in El Salvador) interviewed [REDACTED] in
Washington. [REDACTED], a Venezuelan national, was the
head of the Venezuelan Special Advisory Group to El Salvador and
had participated in the Salvadoran investigation of the Zona Rosa
murders in 1985. [REDACTED] first described the problems
of preserving the crime scene. [REDACTED] also told the
prosecutors that he believed that the planner of the Zona Rosa
killings was a Salvadoran doctor who had been trained in Moscow
and was "the number two man" in the Salvadoran
Communist party. [REDACTED] stated that this doctor had
been arrested in connection with the Zona Rosa killings but later
released by the Salvadorans as part of an exchange to gain the
release of President Duarte's daughter, who had been kidnapped by
the guerrillas in August 1985. [REDACTED] could provide no
further details on this individual. We found no evidence in the
DOJ files about this doctor.

4. DOJ Trips to El Salvador and Witness Interviews

In January 1988, AUSA Biros left the District of Columbia USAO
for private practice, and the Zona Rosa case was transferred to
another AUSA in the D.C. USAO, J. Michael Hannon, Jr. Hannon,
along with Biehl, Correa, and several FBI agents, made two trips
to El Salvador in February and April 1988 to locate and interview
witnesses. During these trips, they met with several United
States Embassy officials and Salvadoran law enforcement
officials.

Their efforts to gather evidence in El Salvador were initially
met with some resistance by the United States Embassy personnel.
The United States Ambassador and his political advisor were
concerned that the Salvadoran government would perceive that an
intense, direct effort by DOJ to gather evidence and prosecute
the Zona Rosa murderers in the United States was a sign that the
United States did not feel the Salvadorans were doing an adequate
job in its prosecutive efforts. However, after a meeting between
the DOJ attorneys and the Ambassador, the Embassy cooperated with
DOJ efforts to locate witnesses and obtain evidence.

(a) [REDACTED]

During their first trip to El Salvador, the DOJ attorneys
located and interviewed [REDACTED], the eyewitness [REDACTED].
DOJ had requested that the FBI and the Salvadoran Special
Investigative Unit find [REDACTED]. Biehl said because
there was no FBI Legat assigned to El Salvador, and someone had
to come from Panama or Mexico City to work on the case, the FBI
was not able to follow up on all investigative requests made by
the prosecutors. Therefore, DOJ Attorney Correa, who spoke fluent
Spanish, went around San Salvador in a cab from address to
address until he found [REDACTED].

[REDACTED] described for DOJ attorneys the lineup at
the National Guard Headquarters in which he identified Rivas. [REDACTED]
said he had observed about 38 men being brought to an area where
he was positioned behind a large window. This group was reduced
to about 17 men, from whom 6 were chosen to stand in a line
before him. Before the six were selected, [REDACTED]
recognized Rivas.

Rivas was included among the six in the lineup. After [REDACTED]
asked for a beret to be placed on Rivas' head and a gun in his
hands, [REDACTED] identified Rivas.

In a prosecutive memorandum, AUSA Hannon reported that [REDACTED]
had a "photographic memory" of events on the night of
the murder. Hannon wrote, "When reciting the events of that
night, his eyes become vacant as he recreated the scene in his
mind's eye. He recounts the events of that night with such detail
and emotion that he will make a convincing witness despite the
date of the offense." Biehl also reported that [REDACTED]
had an almost photographic memory of the crime.

[REDACTED] told DOJ attorneys that [REDACTED]
had also made a positive identification of Rivas from a lineup.
The Salvadoran police files indicated, however, that [REDACTED]
identification was negative. [REDACTED] could not be
located during the DOJ trips to El Salvador. The FBI learned from
interviews of [REDACTED] family that on an unknown date, a
car [REDACTED] had been driving was found abandoned in an
area of heavy FMLN activity. The FBI suspected that [REDACTED]
was "disappeared" by the FMLN to keep him from
testifying in the Zona Rosa case.

The DOJ attorneys requested through DOS that [REDACTED]
be brought to the United States. DOJ wanted [REDACTED] to
be present in the United States so that he would be available if
the United States prosecution of Rivas went forward. According to
DOJ attorneys, the request languished for some time, until DOS
Legal Officer Rick Chidester arranged for [REDACTED] and
his mother to come to the United States. INS granted [REDACTED]
an indefinite parole into the United States as a material
witness.

Chidester personally escorted [REDACTED] and his mother
to Washington, D.C., in the spring of 1989. DOJ did not place [REDACTED]
in the Witness Security Program, because it wanted [REDACTED]
to become self-sufficient. The FBI helped [REDACTED] get a
job as a waiter in the Adams-Morgan section of Washington, D.C.,
provided him financial support, and kept in frequent contact with
him.

(b) Garcia

On February 17, 1988, during one of their trips to El
Salvador, AUSA Hannon and an FBI agent interviewed Garcia in a
Salvadoran prison. Hannon told Garcia that he did not believe
that Garcia had been directly involved in the Zona Rosa murders,
but that there was great concern over the conflicting statements
he had given. Hannon also said he had the impression that Garcia
had not told authorities all he knew. During this interview,
Garcia denied telling Border Patrol authorities that he had
knowledge of the Zona Rosa incident. Garcia insisted that the
Border Patrol had shown him a picture of Rivas, and Garcia had
simply told what he knew about Rivas from working with him in the
upholstery shop. Garcia also denied he participated in the Zona
Rosa attack. Although he denied overhearing any specific
conversations between Rivas and Ulises about the attack,
he admitted hearing them say they were going to "bowl over
some gringos" several days prior to the attack. Garcia
alleged that he had been beaten for a period of approximately six
days by the Salvadoran police in an attempt to get him to admit
responsibility for the Zona Rosa attack. Garcia stated that his
mother and niece were also held by the police and that his mother
was interrogated behind a two-way mirror while he watched. Garcia
said this was the reason for his inconsistent statements and
confession to Salvadoran authorities.

(c) Other Supporting Witnesses

DOJ attorneys also interviewed numerous Salvadoran officials
and investigators about the Zona Rosa murders during their trips
to El Salvador. The Salvadoran officials were cooperative and
provided the attorneys with diagrams of the suspected structure
of the Mardoqueo Cruz. DOJ attorneys also interviewed the
witnesses to Rivas' signed statement before the military court.
They claimed that Rivas gave the statement freely and without
coercion after he was advised of his rights.

On February 17, 1988, the FBI interviewed Dimas, the brother
of Ulises. Dimas stated that he had signed a statement
written by the Salvadoran National Guard after his arrest, but he
had not read the statement. He also stated that he was coerced to
confess after three days of interrogation. Dimas reported that
when he was taken before a judge, he told the judge that his
statement was involuntary and that he had been told what to say
to the judge prior to the hearing.

DOJ attorneys attempted to interview other witnesses during
their visit to El Salvador. After learning that Rivas had met
with representatives from the Red Cross during his incarceration,
unsuccessful attempts were made to locate and interview the Red
Cross visitors about their contact with Rivas.

5. FBI Interviews of Witnesses

Between March 1988 and September 1988, the FBI interviewed
numerous witnesses to the murders throughout the United States,
including military and civilian witnesses who were eating at the
Zona Rosa cafes at the time of the attack. None of these
witnesses were able to identify the perpetrators of the attack.
Many did not see anyone because they were running for cover.
Those who saw the gunmen were not able to identify anyone when
shown photographic spreads containing the photographs of Rivas
and Garcia.

6. Problems with United States Prosecution of Rivas

As noted above, DOJ attorneys believed that the statute
protecting "internationally protected persons," 18
U.S.C. õ 1116, applied to the Zona Rosa murders. Although this
was an issue of first impression, John DePue of DOJ's TVCS
researched this issue and obtained documentation from DOS
establishing that the Marines worked on the diplomatic side of
the Embassy in El Salvador. DePue said his research showed that
the statute covered Marine security guards attached to a United
States Embassy abroad. In addition, because of the concerted
nature of the attack, DePue believed that the perpetrators could
also be charged under 18 U.S.C. õ 1117 with conspiring to
violate õ 1116.

At the time of the murders, õ 1116 was not a capital offense
and had a five-year statute of limitations. As a result of the
Violent Crime Control and Law Enforcement Act of 1994, õ 1116
was made a capital offense, with an unlimited statute of
limitations. But the Act did not apply retroactively to crimes
committed before its enactment.

Yet, despite the applicability of these statutes to the
crimes, there were several problems confronting DOJ prosecutors
seeking to bring a winnable case against the Zona Rosa
perpetrators.

(a) Extradition

As noted above, the greatest impediment to prosecution of the
case in the United States involved obtaining custody over any
Salvadoran citizen. Even when they were investigating the case,
DOJ attorneys believed that obtaining custody of a Salvadoran
would be unlikely.

(b) Admissibility of Rivas' Confessions

The various DOJ attorneys assigned to the Zona Rosa case had
differing beliefs about the admissibility of Rivas' confessions.
AUSA Hannon believed that Rivas' confessions would be admissible
in a United States court. Hannon noted in a prosecutive
memorandum dated January 10, 1989, that the Miranda rule does not
apply to the conduct of foreign officials, and the only test
which his confession must pass was a voluntariness test. One
exception to that rule, however, is that the Miranda rule applies
if foreign officials act as agents of the United States
government. Hannon expected that the defense in the Rivas case
would argue that the entire Salvadoran investigation was directed
by the United States. Hannon was concerned about the role of CIA
personnel in the Salvadoran investigation and how information
regarding their role could be presented without revealing
classified information in court. On balance, however, Hannon
believed that it could be proved that the Salvadorans were not
agents of the United States when they conducted their
investigation.

Hannon also believed that Rivas' initial confession to the
National Guard was voluntary. Hannon was concerned about the
prolonged interrogation, but believed that "if properly
considered in the context of an intelligence gathering operation
designed to identify guerrilla operations, a court could
conceivably admit the initial confessions under a totality of the
circumstances test."

Hannon knew that, according to the human rights group
"The Americas Watch" and some members of Congress, one
of Rivas' interrogators was alleged to have committed various
human rights violations in El Salvador. Hannon questioned whether
the United States should use this interrogator as a witness.
Hannon believed, however, that even if the initial confession
were not admissible, the subsequent confessions to judicial
authorities would be.

Other prosecutors we interviewed did not share Hannon's
sanguine view. As noted above, AUSA Biros believed there to be
serious questions as to the voluntariness of Rivas' confession to
Salvadoran authorities. TVCS attorney Biehl agreed. He reported
that when he interviewed one of Rivas' interrogators in El
Salvador, the interrogator had described the interrogations as
"intense." Biehl said this probably was an
understatement. The interrogator had laughed when Biehl asked
whether Rivas was allowed to sleep, which indicated to Biehl that
sleep deprivation techniques were used. Biehl also said that the
interrogator was a "frightening" person, and Biehl
doubted that a United States jury would believe the interrogator
if he testified as to the facts of the interrogation. Biehl
concluded that he did not think a United States judge would admit
Rivas' confession to his Salvadoran interrogators.

Biehl also believed that Rivas' judicial confession would not
be admitted. Biehl said that the judge was a very impressive and
courageous person and that he was subsequently murdered in El
Salvador by unknown assassins. Biehl stated that the judge had
put on the record that Rivas' confession was voluntary, but Biehl
did not believe that this was sufficient to clear the taint of
any prior involuntary confession.

The AUSA who later succeeded Hannon in handling the case, AUSA
Brian Murtagh, also did not believe that Rivas' confession would
pass the voluntariness test and be admitted in a United States
court. Murtagh noted that Rivas was subjected to extensive
interrogation before he confessed, lasting as long as fourteen
hours. Even if Salvadoran witnesses were available to testify to
the circumstances of the confession at the inevitable suppression
hearing before a United States court, Murtagh believed that Rivas
could argue that the Salvadorans were acting on behalf of the
United States when they obtained the statements from Rivas.
Murtagh was worried that he would not be able to rebut such
claims because of his inability to use classified information or
CIA witnesses in his case without compromising United States
security or embarrassing the government of El Salvador.

Murtagh stated that, although he did not raise this directly
with the CIA, his experience led him to believe that the CIA
would be reluctant to let any of its employees or assets testify
in a United States trial. Therefore, Rivas' statements to the CIA
polygrapher would not get before the court. Murtagh stated that
he did not think a confession by Rivas to the CIA would have been
admissible in any event, because that would likely have been
ruled to be the product of previous involuntary confessions.

Thus, despite Rivas' several confessions, the predominant
opinion among DOJ prosecutors was that the confessions would not
be admitted in any United States prosecution and, even if they
were admitted, would be discounted by the jury.

(c) Motion to Suppress [REDACTED] Identification of Rivas

Both Biehl and Murtagh stated that they were also concerned
that [REDACTED] identification of Rivas in the Salvadoran
lineup would not survive a suppression hearing contesting the
admissibility of the lineup identification. The FBI tried to
obtain information from the Salvadoran government about the
witnesses to the lineup, but the FBI could not get from the
Salvadorans any photographs of the lineup, which would have been
important in rebutting a claim that the lineup was unduly
suggestive.

On December 4, 1989, Murtagh wrote a letter to Robin Frank
from the Legal Advisor's Office at DOS requesting aid on the
Rivas prosecution. Murtagh included a number of specific requests
for information that would be necessary for a United States
prosecution of Rivas. One of the requests was for information on
the lineup that [REDACTED] had viewed. Murtagh said he
never received anything back from Frank--who left her position at
DOS shortly after this letter--from anyone else at DOS, or from
the Salvadorans. Murtagh believed that without such information,
DOJ could not overcome a claim that the lineup was unduly
suggestive, which would undoubtedly be raised in a United States
trial.

(d) Problems with Evidence Handling

As noted above, the forensic evidence collected by the
Salvadorans was not well-handled. DOJ attorney Biehl called the
forensic evidence in the case "terribly mismanaged."
The crime scene had not been preserved, and there was no
established chain of custody for any piece of evidence recovered
at the scene. Biehl said that DOJ was given no information on who
found the evidence or where it had been found. For example, Biehl
recalled a bag full of shell casings and bullet fragments labeled
"Zona Rosa," with no further identification. The DOJ
attorneys also tried to get television tapes of the crime scene,
but the Salvadorans were not able to locate them.

Murtagh similarly described problems with the chain of custody
of the bullets extracted from the bodies of the Marines in El
Salvador. Bullets were given by the Salvadorans to the FBI for
comparison with any weapons that were found. But the bullets were
not labeled properly by the Salvadorans, and no one bullet could
be traced with an adequate chain of custody to a specific victim.
Without such evidence, the bullets might not be admissible.
Moreover, no gun was found that was linked to the Zona Rosa
murders.

(e) Problems Obtaining Information During a Civil War

The difficulties in obtaining information and witnesses from a
country in the middle of a civil war were many. The Salvadoran
police and military were not consistently reliable, both in terms
of their investigative skills and in refraining from the use of
coercion on prisoners. The United States Embassy was involved in
numerous investigations of Salvadoran military human rights
abuses and "death squads" and was familiar with the
potential for violence and corruption on the part of the
Salvadoran interrogators.

In addition, it was difficult to locate witnesses or convince
witnesses to cooperate with a United States investigation.
Witnesses were understandably afraid of retaliation, as evidenced
by the disappearance of eyewitness [REDACTED], who was
allegedly killed by the guerrillas, and the assassination of the
judge who witnessed Rivas' confession.

7. The Indictment of Rivas

The consensus of DOJ attorneys we interviewed was that the
case against Rivas was essentially a "one-witness
identification case," relying on the testimony of [REDACTED].
If Rivas' confession was inadmissible, which was likely, there
was no admissible evidence against Rivas other than [REDACTED]
testimony. Nevertheless, DOJ believed in 1988 that [REDACTED]
testimony was sufficient to indict Rivas. DOJ made the decision,
however, to wait until after Rivas turned 21 on October 31, 1988,
to indict him. Under 18 U.S.C. õ 5032, a defendant could be
prosecuted as an adult when he was 21, even though the offense
was committed before he reached that age. AUSA Hannon obtained a
sealed complaint and warrant against Rivas on November 10, 1988.

In 1988, DOJ attorneys presented several United States
citizens who were eyewitnesses to the shooting to testify before
the grand jury, although none were able to identify Rivas.
Several Salvadoran military officials and prosecutors also came
to the United States in connection with the investigation, but
they did not testify before the grand jury.

DOJ attorneys decided not to have [REDACTED] testify
before the grand jury because of his poor English. The DOJ
Attorneys who interviewed him were satisfied with his recall of
events, and they did not believe that his first-hand testimony
needed to be presented. His testimony was summarized before the
grand jury by an FBI agent.

On September 15, 1989, in response to renewed concerns that
the Salvadoran government was about to include the Zona Rosa
defendants in an amnesty, DOJ prosecutors presented an indictment
against Rivas to the federal grand jury in the District of
Columbia. On the same day, the grand jury returned an indictment
charging Rivas with four counts of murder of an internationally
protected person under 18 U.S.C. õ 1116 and one count of
conspiracy under 18 U.S.C. õ 1117. The indictment was returned
under seal.

A criminal complaint was filed and a warrant issued for Garcia
as a material witness. Although none of the DOJ prosecutors felt
it was likely that Garcia would ever be used as a witness, they
wanted to preserve the option to do so.

8. Plans to Obtain Custody of Rivas

On September 7, 1989, the United States Embassy in El Salvador
reported that the government of El Salvador had made
"overtures that they would entertain releasing captioned
subject Bolanos, Garcia Melendez, Dimas Aguilar, Juan Antonio
Lucero for prosecution in the U.S." On September 12, 1989, a
meeting was held among DOJ and DOS participants to discuss the
possible release to the United States of the Zona Rosa
defendants. DOS officials reported that Salvadoran officials had
asked what the United States government would do if Rivas
suddenly appeared aboard a flight to Miami. The Salvadoran
officials had been told that the United States would welcome such
an event and that Rivas would be arrested. FBI agents stated at
the meeting that they were prepared to arrest Rivas in Miami if
he arrived in that manner.

Other options were also discussed at the meeting, including
the possibility of the FBI agents' flying to El Salvador aboard a
United States military aircraft, taking custody of Rivas, and
transporting him back to the United States. The FBI believed that
this option would give FBI agents time to conduct an in-depth
interview of Rivas during the trip to the United States. Because
of the belief that Rivas' confessions to Salvadoran authorities
might not be admissible in a United States court, it was believed
that a statement from Rivas to the FBI was very important.

Department of Defense (DOD) officials agreed to make a C-130
aircraft available for this mission. The aircraft was placed on
alert after the meeting, ready to fly to El Salvador. According
to a DOD participant in the meeting, the aircraft remained on
alert for about a week, but it was never asked to fly to El
Salvador.

On December 27, 1989, the Director of the FBI sent an
"Action Memorandum" to the Attorney General outlining
three possible scenarios for taking Rivas into custody. The plans
also included obtaining custody over Garcia as a material
witness. The three proposals were as follows. (1) Salvadoran
authorities would give the FBI custody of Rivas and Garcia by
putting them on board a United States Marine Corps C-130
aircraft, which would then fly to Andrews Air Force Base. (2) The
Salvadorans would expel Rivas and Garcia to a third country, such
as the Dominican Republic, and the third country turning them
over to FBI custody. (3) The Salvadorans would place Rivas and
Garcia on a Government of El Salvador aircraft with no other
passengers and fly them to the United States, where they would be
arrested and taken to the nearest United States Magistrate.

However, none of these plans were implemented because the
Salvadorans did not ultimately extend the amnesty to the Zona
Rosa defendants and never agreed to send the defendants to the
United States. Rather, the Salvadorans agreed to try the
defendants in their courts.

In January 1988, the military appellate court granted amnesty
to political prisoners, including the Zona Rosa defendants, but
stayed that opinion pending appeal to President Duarte. The
United States pressured the Salvadorans to go forward with the
prosecution of the Zona Rosa defendants and not include them in
any amnesty. The United States Congress also passed a bill
withholding a percentage of United States aid to El Salvador. The
bill stated that the withheld money could only be obligated if
the "accused murderers of the United States Marines in El
Salvador have not been released from prison as the result of an
amnesty."

On April 8, 1988, Duarte reversed the decision of the military
appellate court, holding that the amnesty did not apply to the
Zona Rosa defendants. Duarte's decision was based on two treaties
to which El Salvador and the United States are signatories--the
1971 Convention to Prevent and Punish Acts of Terrorism and the
1979 Convention on the Prevention and the Punishment of Offenses
Against Internationally Protected Persons. Duarte found that the
United States Marines working at the United States Embassy were
internationally protected persons as defined under the treaties
and that the treaties superseded the amnesty agreement. DOJ, the
FBI, and DOS were involved in persuading the Salvadoran
government to pursue the case against the Zona Rosa suspects.

Defense counsel appealed the ruling to the Supreme Court,
which ruled in September 1989 that the case should be reopened
and the defendants tried. The case was remanded to a military
court for trial. Another appeal followed on the issue of whether
a military or civilian court had jurisdiction. The Court of
Second Instance finally ruled that a military court should hear
the matter.

In April 1991, Rivas, Garcia, and Dimas were finally tried in
a Salvadoran military court. All were convicted of the charges
against them. Rivas was found guilty of subversive association,
cooperation in subversive propaganda, and acts of terrorism
resulting in the deaths of several persons in conjunction with
the Zona Rosa attacks. He was sentenced, respectively, to three,
two, and twenty years, consecutively, on those charges. Garcia
was found guilty of cooperating in acts in support of terrorism
and related charges, and he was sentenced to 11 years in prison.
Dimas was convicted of subversive association and sentenced to
four years. Because he had already served over six years at the
time of his conviction, he was released from prison.

According to DOJ prosecutors, the convictions against the
defendants were satisfying, and they believed that "justice
had been served." They also thought that a 25 year sentence
for Rivas, to be served in a Salvadoran jail, was a significant
sentence. As a result, they made no further attempts to gain
custody of him or to have him prosecuted in the United States.
After Rivas' conviction, AUSA Murtagh received requests from the
FBI to dismiss the United States indictment. DOJ did not want to
do this, however, in an abundance of caution, because the
situation could change in El Salvador and there was no compelling
reason why the indictment had to be dismissed.

2. Deterioration of the United States Case against Rivas

After [REDACTED] came to the United States, his value
as a witness diminished and eventually was destroyed. AUSA
Murtagh reported that when [REDACTED] was flying to
Washington from El Salvador, he told DOS Legal Officer Chidester
that he had used the gun that had been taken from his waistband
in the Zona Rosa attack to kill someone. [REDACTED] said
that he had been with his girlfriend on the beach and someone had
raped his girlfriend. [REDACTED] said he got a gun, shot
and killed the rapist, and kept the gun until it was taken from
him during the Zona Rosa attack. Chidester did not tell anyone
from DOJ about this conversation when they arrived in the United
States. But [REDACTED] later reported the same story to an
FBI Special Agent, who recorded the information and informed the
DOJ prosecutors about it.

This story concerned the DOJ prosecutors, who advised INS in
writing of this information. Prosecutors did not believe that
this fact made [REDACTED] unusable as a witness. However,
subsequent events in the United States undermined his value as a
witness. In the summer of 1990, [REDACTED] brought his
girlfriend, who was also considered to be his common-law wife,
from El Salvador to join him in Washington. (This was a different
girlfriend from the one who had been raped on the beach.) [REDACTED]
girlfriend also brought her 11-year-old daughter with her to the
United States. In 1991, [REDACTED] was arrested in Fairfax
County, Virginia, for sexually molesting the 11-year-old
daughter. He was charged with two counts of sexual battery on a
minor. In a state court trial, [REDACTED] was convicted of
the charges and sentenced to 20 years. Murtagh said that DOJ had
absolutely no involvement in the case and did not intervene to
help [REDACTED] in any way. [REDACTED] is currently
serving his sentence in a Virginia prison and has not been in
contact with DOJ prosecutors.

Both Murtagh and Biehl now agree that, as a result of the
conviction, [REDACTED] has "fallen apart" as an
effective witness and that a trial resting on his testimony--even
if he were still cooperative--would be virtually impossible for
the government to win.

3. Release of Rivas by the Salvadorans in 1995

On August 8, 1995, DOS informed the FBI that Rivas was about
to be released from Salvadoran prison because of the passage of a
new law regarding juvenile crimes. Under the Salvadoran law, a
juvenile could only be imprisoned for a maximum of seven years on
a murder charge. The law applied to Rivas because he was 17 at
the time of the Zona Rosa killings. The Salvadoran government
tried to keep Rivas in custody in a psychiatric institution, but
that effort failed when a psychiatrist found that he no longer
posed a danger to society. On September 7, 1995, Rivas was
released from prison, having served 10 years of a 20 year
sentence.

AUSA Murtagh said that at the time of Rivas' release, no one
believed that El Salvador would expel Rivas to the custody of the
United States. Murtagh and Biehl also believed that the case
against Rivas was no longer winnable because of the problems with
establishing the circumstances of the lineup in which [REDACTED]
identified Rivas, the inadmissibility of Rivas' confessions, and
the problems with [REDACTED] as a witness because of his
criminal conviction for sexual molestation of a minor. Murtagh
said he thought he could explain to a jury [REDACTED]
killing the rapist on the beach in El Salvador, but [REDACTED]
conviction for sexual battery could not be explained. Moreover,
DOJ attorneys believed that the 10 years that Rivas had served in
a Salvadoran prison was a considerable sentence, even in relation
to United States standards.

During the week of February 20, 1996, however, at the request
of DOJ prosecutors, an FBI agent travelled to El Salvador to
review evidence in the possession of the Salvadoran authorities
to determine whether any prosecution in the United States of
Rivas or anyone else, including Gilberto Osorio or Pedro Andrade,
was possible. The FBI agent reviewed the National Police file but
could not find the record of the confessions by Rivas. The FBI
agent found that the several different Salvadoran agencies that
had investigated the Zona Rosa murders no longer existed. Also,
according to Salvadoran officials, some of the files from the
non-existent agencies had been "purged."

Moreover, the FBI agent reported that it was his impression
that, because Rivas served a considerable sentence in El Salvador
and was released because of changes in the country's juvenile
code, the United States could not expect any assistance from the
Salvadoran government in pursuing prosecution of Rivas in the
United States. The FBI agent suggested that, faced with the lack
of solid evidence and the fact that [REDACTED] was
convicted of child molestation, the indictment should be
dismissed.

On February 11, 1996, the FBI learned that Rivas was seeking
asylum in Australia. The FBI informed the Australian Assistant
Secretary for Immigration that there was a warrant for the arrest
of Rivas in the United States The FBI notified Australia of the
United States' strong opposition to Australia granting political
asylum to Rivas because of his terrorist history, the heinous
nature of the crime, and the lack of danger to him in El
Salvador.

The consensus of the DOJ prosecutors we interviewed was that
there is no reasonable possibility of a conviction against Rivas.
The prosecutors believe that he would not be convicted in a
United States court based on the available evidence. They believe
that it would be a mistake for the United States to seek to gain
custody of Rivas and then lose the case in a suppression hearing
or before the jury. Finally, they point out that, although it
would have been preferable for Rivas to have served his full
sentence in El Salvador, he did serve a substantial portion of it
in the extreme conditions of the Salvadoran prison system,
despite his young age.

On July 13, 1988, the Salvadoran National Police arrested Juan
Antonio Morales Lucero (Morales), also known as
"Ruperto," and charged him with involvement in the Zona
Rosa murders. Morales allegedly told the Salvadoran police during
interrogation after his arrest that he had been a member of the
PRTC and had participated in the murders. We have no information
about the circumstances under which he was interrogated or the
voluntariness of his confession. Morales told police that he had
provided security from the back of the pickup truck used in the
killings and remained in the truck with the driver while the
others fired on the victims. Morales stated that others how
participated in the attack were Walter, Ulises, Julio,
Manuel and another whose name he could not recall. Morales
said he was armed with a Galil rifle; Julio, Walter,
and Manuel with M-16's; Ulises with a 9 mm pistol;
and the driver with a .38 special revolver. Morales said he left
the PRTC immediately after the Zona Rosa killings when the PRTC
leaders failed to pay him the $100 they had promised him for his
part in the killings.

The CIA notified FBI Headquarters of Morales' arrest by
teletype on July 26, 1988. FBI Headquarters forwarded this
information to the FBI Legat, Panama City, and asked it to obtain
the details of the arrest and Morales' statements. The Panama
Legat collected reports of the interview of Morales in Spanish,
summarized them, and forwarded them by airtel to the FBI in
Washington on September 14, 1988. The airtel also changed the
subject heading of the case to include Morales as a subject. FBI
Headquarters forwarded the airtel to WMFO on October 11, 1988.
FBI records show that on October 15, 1988, FBI Special Agent [REDACTED],
the case agent responsible for the case, received these reports.

On November 1, 1988, WMFO agent [REDACTED] completed
the FBI Prosecutive Report for the Zona Rosa matter. This report
does not reflect the change in the subject heading to include
Morales and does not include any of the information on Morales'
confession to Salvadoran authorities.

On November 23, 1988, Legat Panama City sent a teletype to FBI
Headquarters reporting that DOS had requested information from
the United States Embassy about developments regarding Morales'
prosecution since the arrest of Morales on July 13, 1988. No
response to this request was found in the FBI files.

On March 3, 1989, the United States Embassy reported to DOS
and the FBI in Washington that there had been no judicial
developments since the defense filed a habeas corpus petition
with the Salvadoran Supreme Court on behalf of Morales after
President Duarte overturned the release of the three original
defendants under the amnesty plan. The Embassy reported that no
action could be taken in the case until the Supreme Court
rendered its decision. "For this reason, Morales has not
been brought before the lower court as a co-defendant in the Zona
Rosa case." This information was received by FBI
Headquarters and forwarded to WMFO and the Panama City Legat.

On May 4, 1989, DOS cabled the United States Embassy and sent
an informational copy to FBI Headquarters and the Panama City
Legat [REDACTED]. The cable requested information on the
status of the Salvadoran case and the status of the case against
Juan Antonio Lucero [Morales]. FBI Headquarters appears to have
added an addendum requesting WMFO and Legat Panama City to advise
Headquarters of the results of their investigation as requested
by DOS and to "ensure this matter is closely followed and
leads expeditiously handled."

On August 18, 1993, Morales was eventually tried by a
Salvadoran court for his involvement in the Zona Rosa murders.
Morales was acquitted by a jury after 12 hours of deliberation.
Newspaper accounts of the acquittal report that Morales claimed
that he had confessed to police so that they would stop beating
him. His attorneys also argued that other guerrillas, presumably
in other cases, had been incarcerated for less time than Morales
had served since his arrest in 1988.

Our review of DOJ files revealed no further information
concerning Morales. Neither Rivas, Garcia, nor Andrade provided
any information to the Salvadoran police or other law enforcement
implicating Morales in the Zona Rosa massacre.

We found no evidence that the DOJ prosecutors handling the
Zona Rosa case were provided the reports about Morales' arrest.
In connection with the potential release of the Zona Rosa
defendants by the Salvadoran government, in September 1989 the
FBI met with DOJ prosecutors to discuss plans to obtain custody
of some of the defendants, particularly Rivas, who was about to
be indicted in the United States. See Section II(G)(8), above.
The names of four defendants in Salvadoran custody were raised,
including Morales' name. But it is not clear whether details
regarding Morales were discussed during this meeting. There is no
evidence that the reports regarding Morales' arrest and
confession were ever conveyed to DOJ prosecutors. The reports
received by the FBI were not in any DOJ prosecutor's files. As
discussed above, [REDACTED] did not include any
information about Morales in his November 1, 1988 Prosecutive
Report on the Zona Rosa killings. [REDACTED] told us that
he has no recollection of the information about Morales.

AUSA Murtagh told us that he had no recollection of ever
learning about the details of Morales' arrest or reviewing any
statements by him. Murtagh also stated that if he had received
the information about Morales, he would have requested further
investigation into his involvement in the attack. Murtagh said he
would have probed the circumstances surrounding Morales'
confession and whether there was any other evidence indicating he
had been present during the attack. Because Murtagh was not aware
of the Morales information, the question of whether other
witnesses, such as [REDACTED], could identify Morales was
never explored.

Murtagh stated that he might have included Morales in the
Rivas indictment if there was sufficient evidence, but he would
not have tried Morales alone because of the paucity of evidence
against him. He also stated, however, that it is unlikely that he
would have sought an indictment against Morales with only a
confession to Salvadoran military authorities as evidence.

2. Other Alleged Perpetrators

The other three gunmen to the attack were never apprehended or
identified. Julio died during the attack. Ulises and
Walter were believed to have died in battle. Macias
was never apprehended or fully identified.

In Section IV of this report below, we provide a detailed
description of the information DOJ obtained on Andrade. In that
section we describe the intelligence implicating Andrade in the
attack and how he was permitted to enter the United States on a
public interest parole.

2. Jose Manuel Melgar, aka Rogelio Martinez

Pedro Andrade was captured by the Salvadorans in May 1989 and
interviewed by the FBI in June 1989. Andrade told the FBI that
Rogelio Martinez had planned the Zona Rosa murders and asked
Andrade to arrange for medical care and safehouses for the
guerrillas. Andrade's statement is fully detailed at Section
IV(B)(5) of the report. Aside from Andrade's statement, we found
no evidence in DOJ files of Melgar's involvement in the killings.

In February 1991, the United States Embassy reported to the
FBI that Jose Manuel Melgar, one of the alleged intellectual
authors of the murders, was still at large and reportedly was
travelling frequently between Managua, Nicaragua and Mexico City
as a "senior PRTC political/military operative." The
Embassy requested that the FBI, in conjunction with AUSA Murtagh,
interview Andrade to determine if there was sufficient evidence
to indict Melgar and request his extradition. The Embassy was
informed by DOJ that no new indictments were possible, because
the five-year statute of limitations, discussed above, had run.

3. Francisco Alberto Jovel

Francisco Alberto Jovel Urquilla, aka Commander Roca, was
believed by Salvadoran authorities to be a leader of the PRTC. In
April 1989, at the request of the CIA, the FBI ran traces on the
wife of Jovel, Celia Alfaro Jovel, aka "Elizabeth Sol,"
but this request was not related to the Zona Rosa investigation.

On September 19, 1994, the Director of the FBI sent a teletype
to DOS, CIA, INS, and various FBI field offices advising them
that DOS had informed the FBI that Francisco Jovel, aka
"Roberto Roca," had applied for a transit visa for
travel to Tokyo through the United States. The FBI stated that it
was opposed to granting the transit visa because of Jovel's
membership in and leadership of the PRTC, and the PRTC was
responsible for the assassination of four United States Marines.
The FBI stated that Mario Gonzales had told the Salvadoran
police that Jovel was responsible for holding all PRTC records
and was present at the PRTC residence on a daily basis. The FBI
concluded that, based on Jovel's role in the PRTC and his
possession of PRTC documents, it was highly likely that Jovel was
"well aware" of the planning and execution of the Zona
Rosa murders. The transit visa for Jovel was denied.

Aside from the statements by Andrade that Jovel was involved
in the leadership of the PRTC, our review of DOJ files reveal no
evidence of any involvement in the Zona Rosa killings. According
to an FBI interview of Gilberto Osorio in December 1995,
discussed in detail below, Jovel is now a member of the
Salvadoran Congress.

In Section IV of this report below, we provide a detailed
description of the information DOJ had on Osorio. No information
in DOJ files suggested that he participated in the Zona Rosa
attack.

2. Pedro Vladimir Rodriguez

On January 17, 1986, the Salvadoran National Guard raided a
house in San Salvador which reportedly had a cache of weapons,
some of which had been used in the Zona Rosa attack. The National
Guard arrested Pedro Vladimir Rodriguez and found a number of
weapons in his home. Rodriguez' father, alleged to be a member of
the PRTC, was not at home during the police raid and was never
captured. According to Rodriguez, PRTC members Mario and Ulises
delivered the weapons to the house on May 1, 1985. Rodriguez said
that he and his father were responsible for guarding the weapons.
Five days before the Zona Rosa killings, Ulises came to
the house and told Rodriguez to prepare three M-16 rifles, one
AR-15 rifle, one submachine gun, and two hand-grenades that Ulises
would pick up later. Two days later, Ulises and Mario
collected these weapons.

Rodriguez' brother told Salvadoran authorities that several
days after the shooting, he saw the area of the arms cache had
been dug up. This indicated to him that the weapons taken by Ulises
and Mario may have been returned.

Rodriguez was able to identify Ulises from a
photograph. Rodriguez stated that his "contact" with
the PRTC was Walter, who told Rodriguez that he had
participated in the Zona Rosa attack and that Julio had
been killed during the attack. Another of Rodriguez'
"contacts" in the PRTC, Jose Anibal Massferrer, later
told Rodriguez that Ulises and Walter had been
killed in the Salvadoran Air Force bombing of Guazapa in November
1985. Rodriguez was not charged by the Salvadorans and was
released.

3. Other Perpetrators Mentioned in CIA, DOS and DOD OIG
Reports

There is no information in DOJ files as to any of the other
alleged perpetrators mentioned in the reports of the other OIGs.

L. Assessment of the
Salvadoran and United States Efforts to Identify and Prosecute
those Responsible for the Murders

1. Salvadoran Efforts

Several witnesses we interviewed stated that it was extremely
difficult to identify and capture the perpetrators of a terrorist
act in the middle of the Salvadoran civil war, and the
Salvadorans deserve credit for arresting the perpetrators to the
Zona Rosa murders and prosecuting them. For example, the Deputy
Chief of the CIA's Station (DCS) in El Salvador between August
1984 and December 1986, said that the Salvadorans put in much
effort on the Zona Rosa case because United States citizens had
died, when many Salvadorans were being killed on a daily basis.
The DCS recognized, however, that had the United States
government not pushed the Salvadorans to act, the killings would
not have been investigated as aggressively as they were, but
instead would have been considered "war as usual" to
the Salvadorans.

Ambassador David Passage, the Charge d'Affairs in El Salvador
at the time of the murders, also reported that at the time of the
murders no one at the Embassy believed that the perpetrators of
the Zona Rosa murders or the FMLN could be taken to court in El
Salvador. The Salvadoran prosecution of Zona Rosa defendants was
therefore surprising.

Our assessment of the Salvadoran investigation is in accord
with these statements. The Salvadoran efforts were reasonable in
light of their experience and training and the context in which
the crime occurred. While there were failings that would have
seriously affected a United States prosecution--such as the
failure to preserve the crime scene, to maintain an adequate
chain of custody, to interrogate witnesses without any taint of
coercion--the Salvadoran failures occurred not because of a lack
of effort but because of poor training and the involvement of the
military in a law enforcement investigation. By and large, we
found that the Salvadorans demonstrated an aggressive effort to
identify, prosecute, and incarcerate the guerrillas involved in
the murders, particularly in view of the civil war being waged in
El Salvador. Criminal prosecution of Salvadoran guerrillas, in
the midst of a civil war, was an unusual concept. Military action
was the usual response, and most guerrillas captured before the
Zona Rosa killings were held without trial as prisoners of war.
In this case, however, there were substantial efforts made by the
Salvadorans to identify and prosecute the perpetrators, resulting
in the apprehension and conviction of Rivas, Garcia, and Dimas,
and the unsuccessful prosecution of Morales.

2. DOJ Efforts

We conclude that DOJ's investigative efforts were reasonable
and thorough, despite the many obstacles that DOJ investigators
faced, and that DOJ's prosecutive decisions were appropriate. The
investigation of a case in a foreign country in the middle of a
civil war was exceedingly difficult. The task was made more
difficult by the initial investigative steps taken by the
inexperienced Salvadoran police and their failure to preserve the
crime scene. DOJ prosecutors and investigators made substantial
efforts to uncover admissible evidence against Rivas in El
Salvador and put a substantial effort into finding and then
relocating eyewitness [REDACTED]. DOJ energetically
pursued the prosecution of Rivas, at the request of DOS, even
though the United States indictment was sought only as a
"backup" to the Salvadoran prosecution. It was always
uncertain whether the United States would ever gain custody of
any Salvadoran defendants because of extradition problems.
Nevertheless, DOJ gave the Zona Rosa case substantial attention,
even in light of numerous other international terrorism cases
requiring attention.

The FBI also made substantial efforts in this case, initially
providing requested assistance to the Salvadorans and then
assisting DOJ prosecutors when its case was opened in 1987. The
investigative report compiled by the FBI concerning the Zona Rosa
case reflected a substantial amount of work.

DOJ's decision not to seek indictments against anyone other
than Rivas was reasonable in view of the absence of substantial
admissible evidence against anyone else. A review of DOJ files
revealed that the evidence against Garcia showed that, at most,
he was an "accessory after the fact," because he
overheard discussions of the murders and did nothing. No United
States prosecution of Garcia would have been viable on that
basis. Despite Garcia's statement to Salvadoran authorities that
he was involved in the actual shooting, his later recantation of
that "confession" and his lack of knowledge of the
crime scene later convinced Salvadoran authorities that he was
not directly involved. He was convicted of activities in support
of terrorism, but he was not convicted of participating in the
Zona Rosa attack. Similarly, there was insufficient proof that
Dimas was involved either directly or in a conspiracy to kill the
United States Marines.

We find there was insufficient evidence to prosecute any of
the other alleged terrorists detained by the Salvadorans. Aside
from statements by Andrade that Jose Manuel Melgar, alias Rogelio
Martinez, and not Andrade himself, was the mastermind of the
killings, no other evidence implicates Melgar in the murders. Our
review of DOJ files also reveals no evidence to prove that
Francisco Alberto Jovel, Pedro Vladimir Rodriguez, or his father,
were involved in the Zona Rosa killings.

The one failure in this case concerned Juan Antonio Morales
Lucero, who was arrested and tried in El Salvador for allegedly
providing security during the Zona Rosa attack. From our review
of this case, it appears that DOJ did not actively investigate
this matter. Various documents about Morales' capture and
admission were sent to the FBI, but these documents do not appear
to have been forwarded to DOJ prosecutors and were not included
in the FBI's November 1988 prosecutive report. As a result, no
further investigation was conducted on Morales. This breakdown
cannot be condoned. However, it appears that there was
insufficient evidence to bring a case against Morales, who was
acquitted in El Salvador. It is also unlikely that the United
States would have ever obtained custody of him, especially after
his acquittal in El Salvador.

A full discussion of DOJ's decision not to prosecute Pedro
Andrade is found below in section IV.

In sum, we believe that DOJ's overall investigation of the
Zona Rosa suspects was thorough and its prosecutive decisions
reasonable.